North Branford Company Admits To Underfunding Retirement Plan, Filing False Tax Return

Cherry Hill Construction Inc., a company based in North Branford, waived its right to indictment and pleaded guilty Tuesday in New Haven federal court to one count of filing a false tax return, and one count of making a false statement in relation to documents required by the Employee Retirement Income Security Act of 1974 (“ERISA”), according to an announcement from U.S. Attorney Deirdre M. Daly.

ERISA is a federal law that sets minimum standards for retirement plans in private industry, including a requirement that plan sponsors provide adequate funding for a plan.

According to court documents and statements made in court, Cherry Hill Construction Inc., (Cherry Hill) provides statewide service in site development, on-site crushing, trucking, demolition, as well as roll-off dumpsters, top soil, aggregates and landscaping. Cherry Hill was awarded and completed prevailing wage construction projects requiring payment of the prevailing wage rate plus the fringe rate. The fringe rate is the cost of benefits to the employee.

When a company is awarded a prevailing wage project, the company must submit certified payrolls that list the hours, prevailing wage rate and fringe they are paying each employee. The company can either pay the employee the fringe directly or open a benefit plan with the fringe payment being deposited into an account for the benefit of that employee. The company is then paid by the federal, state or municipal governments the amount of payroll, including the fringe, after receiving the certified payrolls. The government entity for which the project is being worked pays these funds only because the employer certifies that the prevailing wage and fringe is being paid to an employee directly or being deposited into a benefit plan.

Cherry Hill opened a profit sharing/401(k) plan that was covered under ERISA. In pleading guilty, Cherry Hill admitted that, in 2010 and 2011, it underfunded its retirement plan by approximately $950,000. Cherry Hill further admitted that it filed a corporate tax return for the 2010 tax year that inflated its actual contribution to the plan, which resulted in an increased employee benefit deduction.

Cherry Hill is scheduled to be sentenced by U.S. District Judge Janet Bond Arterton on April 7, at which time it faces a maximum penalty of 10 years of probation and a $750,000 fine.

Cherry Hill has fully funded its retirement plan and paid $193,000 in back taxes, interest and penalties.

This case is being investigated by the Internal Revenue Service – Criminal Investigation Division, U.S. Department of Labor – Office of Inspector General, and U.S. Department of Transportation – Office of Inspector General. The case is being prosecuted by Assistant U.S. Attorney Douglas P. Morabito.

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